Exhibit 10.45
EMPLOYMENT
AGREEMENT
THIS EMPLOYMENT AGREEMENT (this
“Agreement”) is entered into as of January 1, 2005
between MCF CORPORATION, a Delaware corporation (the
“Company”), and Gregory S. Curhan (the
“Executive”).
WHEREAS, the parties desire to enter into this
Agreement setting forth the terms and conditions for the employment
relationship of the Executive with the Company.
NOW, THEREFORE, it is AGREED as
follows:
1. Employment. The Executive is hereby employed as Executive
Vice President of the Company for a period commencing on the date
hereof and ending two years after the date hereof. As Executive
Vice President of the Company, the Executive shall handle all
day-to-day activities of the Company as customarily performed by
persons serving in such capacities. He shall also perform such
other duties as the Board of Directors of the Company may from time
to time direct. The Executive agrees to serve the Company
faithfully and to the best of his ability and to devote his full
time, attention and efforts to the business and affairs of the
Company during the term of his employment. The Executive hereby
confirms that he is under no contractua1 commitments inconsistent
with his obligations set forth in this Agreement. The Executive
shall be entitled without prior written consent to hold positions
on the Board of Directors of entities that do not compete with the
Company. The Executive has, as of the date of this Agreement,
disclosed to the Board of Directors of the Company the positions
the Executive currently holds on other Boards of Directors, and the
Company has consented to such positions.
2. Location of Services. During the term of this Agreement, the Executive
shall be principally located at the offices of the Board of
Directors of the Company located in the San Francisco, California
metropolitan area.
3. Salary. The Company shall pay the Executive an annual
Base Salary equal to $150,000, paid semi-monthly. The Base
Salary of the Executive shall not be decreased at any time during
the term of this Agreement from the amount then in effect unless
the Executive otherwise agrees in writing. Participation in
deferred compensation, discretionary bonus, retirement, and other
employee benefit plans and in fringe benefits shall not reduce the
Base Salary. The Base Salary shall be payable to the
Executive not less frequently than monthly.
4. Bonuses. The Executive shall
also be entitled to a bonus to be paid based upon the performance
of the Company and consistent with the terms of the executive
management bonus pool approved by the Compensation Committee of the
Board of Directors. Under the terms of the executive
management bonus pool the Executive is entitled to receive a bonus
calculated by the following formula:
(a)
Gross revenue multiplied by 0.50% (one half of one percent),
payable quarterly;
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(b)
Incremental revenue in 2005 that exceeds revenue in 2004 multiplied
by 0.85% (eighty five one hundredth of one percent), payable
quarterly. This is calculated monthly on a cumulative year-to-date
basis using total revenue in 2004 divided by twelve months. This
component can either be $0 or a positive number. If cumulative 2005
revenue does not exceed cumulative 2004 revenue, this executive
bonus component will be $0 and not a reduction to the overall
executive bonus amount.
(c)
Incremental revenue in 2005 that exceeds revenue in 2004 multiplied
by 0.85% (eighty five one hundredth of one percent), payable
annually, provided that the Company is profitable for the calendar
year as measured by EBITDA. This component can either be $0 or a
positive number. If 2005 revenue does not exceed 2004 revenue, this
executive bonus component will be $0 and not a reduction to the
overall executive bonus amount.
(d)
Earnings before interest, taxes, depreciation and amortization
(EBITDA) multiplied by 2.50%, payable annually. This component can
either be $0 or a positive number. If 2005 EBITDA is a negative
amount, this executive bonus component will be $0 and not a
reduction to the overall executive bonus amount.
(e)
The Company’s Chairman and CEO may, in his sole discretion,
award additional bonuses to the Executive based upon achievement of
Company objectives. Such an award is subject to Compensation
Committee approval.
5. Participation in the Executive Benefit
Plans. In addition to
the benefits noted below, the Executive shall be entitled to
participate, on the same basis as other executive employees of the
Company, in any stock option, stock purchase, pension, thrift,
profit-sharing, group life insurance, medical coverage, education,
or other retirement or employee pension or welfare plan or benefits
that the Company has adopted or may adopt for the benefit of its
employees. The Executive shall be entitled to participate in any
fringe benefits, which are now or may be or become applicable to
the Company’s executive employees generally.
The Executive shall promptly be reimbursed for
all reasonable expenses which he may incur in connection with his
services hereunder in accordance with the Company’s normal
reimbursement policies as established from time to time.
6. Sale of the Company.
(a)
During the term of this Agreement or the Severance Period (as
defined below), upon (i) a sale of all or substantially all of
the assets of the Company, (ii) a merger of the Company with
another entity where the Company is not the surviving entity or
where the stockholders of the Company immediately prior to the
merger own less than fifty percent (50%) of the voting stock of the
Company following the merger, or (iii) a change in the
membership of the Board of Directors such that individuals who, as
of the date hereof, constitute the Board of Directors (the
“Incumbent Board”) cease for any reason to constitute
at least a majority of the Board of Directors; provided, however,
that any individual becoming a director subsequent to the date
hereof whose election, or
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nomination for election by the Company’s
shareholders, was approved by a vote of at least a majority of the
directors then comprising the Incumbent Board shall be considered
as though the individual were a member of the Incumbent Board, but
excluding, for this purpose, any individual whose initial
assumption of office occurs as a result of an actual or threatened
election contest with respect to the election or removal of
directors or other actual or threatened solicitation of proxies or
consents by or on behalf of a person other than the Company’s
Board of Directors, the Executive shall receive $500,000 from the
Company and all of the Executive’s options that have been
granted pursuant to the terms set forth in his previous employment
agreement shall vest immediately.
(b) Notwithstanding any other provision of
this Agreement or of any other agreement, contract, or
understanding heretofore or hereafter entered into by the Executive
with the Company, except an agreement, contract, or understanding
hereafter entered into that expressly modifies or excludes
application of this paragraph (an “Other Agreement”),
and notwithstanding any formal or informal employment agreement or
other arrangement for the direct or indirect provision of
compensation to the Executive (including groups or classes of
participants or beneficiaries of which the Executive is a member),
whether or not such compensation is deferred, is in cash, or is in
the form of a benefit to or for the Executive (a “Benefit
Arrangement”), if the Executive is a “disqualified
individual,” as defined in Section 280G(c) of the
Internal Revenue Code (the “Code”), any right to
receive any payment or other benefit under this Agreement shall not
become exercisable or vested or shall be forfeited to the extent
that such right to exercise, vesting, payment, or benefit, taking
into account all other rights, payments, or benefits to or for the
Executive under this Agreement, all Other Agreements, and all
Benefit Arrangements, would cause any payment or benefit to the
Executive under this Agreement to be considered a “parachute
payment” within the meaning of
Section 280G(b)(2) of the Code as then in effect (a
“Parachute Payment”). In the event that the receipt of
any such right to exercise, vesting, payment, or benefit under this
Agreement, in conjunction with all other rights, payments, or
benefits to or for the Executive under any Other Agreement or any
Benefit Arrangement would cause the Executive to be considered to
have received a Parachute Payment under this Agreement, then the
Executive shall have the right, in the Executive’s sole
discretion, to designate those rights, payments, or benefits under
this Agreement, any Other Agreements, and any Benefit Arrangements
that should be reduced or eliminated so as to avoid having the
payment or benefit to the Executive under this Agreement be deemed
to be a Parachute Payment.
7. Standards. The Executive shall perform the
Executive’s duties and responsibilities under this Agreement
in accordance with such reasona
